The opinion of the court was delivered by: Mihm, District Judge.
MEMORANDUM OPINION AND ORDER
This case involves a suit brought by the United States for
damage to the wall of a lock on the Mississippi River. The case
presents some issues that are matters of admiralty law, as well
as legal issues regarding the meaning and scope of a number of
United States statutes. The Court held a bench trial on October
16, 1985, and
the following are the Court's findings of fact and conclusions of
On August 17, 1979, the M/V C.R. Clements was pushing a tow of
15 empty grain barges up the Mississippi River. The M/V C.R.
Clements is owned and operated by the Defendant, Republic Marine,
and at that time was under the command of Pilot Omar Keel. The
tow was arranged in three strings of five barges each, and the
complete tow measured approximately 105 feet wide by 975 feet
long. The tow boat was faced up to the last barge in the center.
Barge CCT-124 was the stern-most barge in the starboard (right)
string. The Defendant, ContiCarriers and Terminals, Inc., is the
owner of barge CCT-124 for purposes of this suit, because it had
bareboat chartered the barge from its owner, Republic National
As part of its trip upriver, the tow boat and its barges had to
navigate through Lock and Dam Number 21, located on the
Mississippi River near Quincy, Illinois. Lock and Dam Number 21
was built in 1939 by the United States Army Corps of Engineers,
which has operated the facility since its construction. Lock and
Dam Number 21 was built by the Plaintiff, the United States of
America, for the preservation and improvement of the navigable
waters of this nation.
Because the lock chamber at Lock 21 is only 600 feet long by
110 feet wide, the tow boat had to divide the tow into two
separate "cuts" of barges in order to pass through the lock. The
tow boat and its barges approached the lock shortly after noon on
August 17, 1979. At that time the lock was being operated by
lockmen Jerome Peter and Leonard Whipps, who directed the
procedures for entering and exiting the lock. The M/V C.R.
Clements pushed the forward nine barges of its tow into the lock
chamber of Lock 21 and this first cut of barges passed through
the lock without incident and caused no damage to the lock.
Following the lockage of the first cut, the lockmen reduced the
water level in the lock so that the second cut of barges and the
tow boat could enter. The second cut consisted of six barges, two
long and three wide, and the M/V C.R. Clements itself.
Prior to the second cut entering the lock, the barges and the
tow boat lay along the downstream guide wall of the lock, located
on the Illinois side of the lock facility. As the lock employees
lowered the water level in the lock chamber, the turbulence
caused the boat and its tow to swing out at a slight angle from
the guide wall. Lockman Jerome Peter advised Captain Keel that
his stern was too wide, and that he would have to get closer to
the east (Illinois) wall before he could enter the lock. Lockman
Peter also advised the Captain to keep the starboard side of his
tow close to the east side of the lock because repairs were being
made to the concrete structure on the west side of the lock
opening. Captain Keel complied with these orders, and in doing so
the starboard side of his tow came into contact with the east
guide wall at a point downriver from where the lock wall was
The lock gate is hinged in a recess in the wall of the lock
chamber in such a way that when fully opened, the gate, lying
within the recess, forms a flush surface along which the tows can
be pushed. The vertical outside corner formed by the lock wall
and the downstream end of the gate is protected by a steel angle
called an armor plate, designed to protect the concrete corner of
the lock wall. The armor plate is approximately 15 feet long,
with each side of the plate approximately six inches in width and
about 3/4 inch thick. The armor plate is set into the concrete
corner of the lock wall in such a manner so as to present a flush
surface with the wall and protect the edge of the concrete wall
from damage when barges rub against it.
The Barge CCT-124 is 35 feet wide, 200 feet long, and 12 feet
deep. Fitted to each side, approximately 23 inches below the deck
were three rub bars, one near each end of the barge and one
mid-ship. The rub bar is a 3/4 inch thick steel plate, extending
about eight inches high and 36 inches forward and aft. The rub
bar acts as a buffer to prevent damage to the wall
of the barge when it comes into contact with anything.*fn1
As the tow boat pushed the second cut of barges into the lock,
Captain Keel kept the starboard side of the tow sliding along the
east wall of the lock. The lock chamber is 110 feet wide, only
five feet wider than the tow being pushed by M/V C.R. Clements.
In order to enter the lock, the tow had to be lined up almost
exactly straight with the entrance of the lock chamber, and the
best way for the tow to stay away from the west side of the lock
was to slide along the east wall of the lock chamber.
While the tow boat pushed the second section of barges into the
lock, Barge CCT-124 caught on the armor plate and pulled loose
from the wall both the armor plate and some attached concrete.
The United States Army Corps of Engineers made emergency repairs
to the corner of the lock wall immediately after the collision.
The Corps began the major repair work in January, 1980, and
completed the repairs in February, 1980, restoring the armor
plate and surrounding concrete work to its original condition.
The total cost of the repairs was $29,974.41, including $1,906.67
for administrative overhead.
Following the incident, Captain Keel observed two burrs
extending from the edge of the protection angle and fresh scratch
marks on the side of the barge which had apparently been made
when the rub bar passed up against the burrs on the protection
angle. The cause of these burrs is unknown and it is also unknown
as to how long these burrs had been present on the angle iron at
the corner of the lock wall prior to the accident. The evidence
does not establish how far these burrs extended from the plate
into the lock chamber, but they were not particularly discernible
in the absence of a minute inspection.
The United States brought suit against the M/V C.R. Clements,
in rem, Barge CCT-124, in rem, Republic Marine, Inc., as owner of
the tow boat, in personam, and ContiCarriers and Terminals, Inc.,
as owner of the barge, in personam, pursuant to 33 U.S.C. § 408
and 412. The United States also brought an action premised upon
negligence, but the Government dismissed that cause of action at
the commencement of the trial.
Republic Marine, Inc. filed a cross-claim against ContiCarriers
for indemnity and contribution, alleging that Barge CCT-124 was
unseaworthy and that ContiCarriers breached its warranty of
seaworthiness to the tow boat operator. ContiCarriers filed a
cross-claim against Republic Marine and brought a third party
action against Dravo Corporation, the shipbuilder which
constructed Barge CCT-124, alleging that the barge was
unseaworthy and its unseaworthy condition caused the damages sued
for by the Government.
This case presents some difficult questions for the Court,
because it raises issues involving strict liability, contributory
negligence, and causation. While the case law on these matters is
somewhat helpful, none of the cases really address the particular
situation with which the Court is presented in this case.
The statutes under which the Government brings suit are
sections of the Rivers and Harbors Act of 1899, which has been
modified slightly since its ...